Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 710 (GAU)

Jamiran Bibi v. Union of India

2018-04-26

NELSON SAILO, UJJAL BHUYAN

body2018
JUDGMENT & ORDER : Ujjal Bhuyan, J. Heard Mr. HRA Choudhury, learned Sr. Counsel assisted by Mr. A.T. Sarkar, learned counsel for the petitioner and Mr. A. Kalita, learned Special Counsel, Foreigners Tribunal (FT). 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 08.08.2016 passed by the Foreigners Tribunal (8th), Dhubri in FT Case No. 8/130/GKJ/2015 (State v. Jamiran Bibi) declaring the petitioner to be a foreigner who had illegally entered into India (Assam) from Bangladesh after 25.03.1971. 3. This Court by order dated 05.10.2016 had issued notice while requisitioning the case record and passed an interim order to the effect that petitioner should be allowed to remain on bail subject to her appearance before the Superintendent of Police (Border), Dhubri and furnishing of adequate surety. 4. Thereafter petitioner has filed an additional affidavit enclosing therewith a copy of the notice issued by the Tribunal to the petitioner as well as a copy of the written statement filed by the petitioner before the Tribunal. 5. Learned counsel for the petitioner has referred to the local verification report in which date of birth of the petitioner was mentioned as 01.01.1971. He, therefore, contends that if petitioner was born on 01.01.1971, there is no question of her migrating to India after 25.03.1971. He has also referred to the notice issued by the Tribunal to the petitioner on 17.09.2015 to contend that allegation against the petitioner was of being a foreigner from the specified territory belonging to the 01.01.1966 to 25.03.1971 stream. Therefore, Tribunal could not have declared her to be a foreigner of post 25.03.1971 stream. 6. On the other hand, learned Special Counsel supports the order passed by the Tribunal and contends that documents relied upon by the petitioner are contradictory besides there being no linkage between the petitioner and her projected father. Contention made on behalf of the petitioner are untenable in law, he submits. 7. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 8. Record discloses that Election Commission of India had ordered intensive revision of electoral rolls for the Gauripur Assembly Constituency in the State of Assam with reference to 01.01.1997 as the qualifying date. 7. Submissions made by learned counsel for the parties have been considered. Also perused the materials on record, including the record requisitioned from the Tribunal. 8. Record discloses that Election Commission of India had ordered intensive revision of electoral rolls for the Gauripur Assembly Constituency in the State of Assam with reference to 01.01.1997 as the qualifying date. In this connection, a house to house enumeration was carried out during the period from 16.01.1997 to 15.04.1997. Though the name of the petitioner was included in the draft electoral roll of the said Constituency published on 24.07.1997, Electoral Registration Officer of the said Constituency expressed doubts about the citizenship status of the petitioner and got the matter verified by an on the spot local verification. On consideration of the report of such verification, Electoral Registration Officer recorded reasonable doubt that the petitioner was not a citizen of India. Thereafter, matter was forwarded to the Superintendent of Police (Border), Dhubri on 16.10.1997 and after completion of necessary formalities, reference was made to the Illegal Migrants (Determination) Tribunal, Dhubri under Section 8 (1) of the Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act) suspecting the petitioner to be an illegal migrant as defined under the IMDT Act. 9. Pausing here for a moment, we may advert to one of the submissions made by learned counsel for the petitioner that since in the local verification report date of birth of the petitioner was mentioned as 01.01.1971 that was indicative of the petitioner's presence in India prior to 25.03.1971. 10. We can afraid, we can accept such contention of the petitioner. This Court has already held that marking of a proceedee in the notice or in the enquiry report as the son or daughter of some other person whom the proceedee claims to be his/her father is neither proof nor evidence of such linkage in terms of section 3 of the Indian Evidence Act, 1872. This being the basic fact in issue would have to be proved by the proceedee by adducing cogent, reliable and admissible evidence. Applying the same reasoning, a mere entry in the report of the local verification officer stating that date of birth of the petitioner would be approximately 01.01.1971 cannot be taken as proof that petitioner was born on 01.01.1971. This being the basic fact in issue would have to be proved by the proceedee by adducing cogent, reliable and admissible evidence. Applying the same reasoning, a mere entry in the report of the local verification officer stating that date of birth of the petitioner would be approximately 01.01.1971 cannot be taken as proof that petitioner was born on 01.01.1971. As a matter of fact, as per assertion of the petitioner herself, her date of birth is something else other than 01.01.1971, to which we will advert to at a subsequent stage of this judgment. 11. Be it stated that under Section 3 (1) (C) of the IMDT Act, an illegal migrant was defined as a foreigner who had unauthorizedly entered into India after 25.03.1971. So this was the clear allegation against the petitioner and there was no ambiguity about it. Even the subsequent notice issued by the Foreigners Tribunal was also quite specific in that petitioner was suspected to be a foreigner from the specified territory who had unauthorisedly entered into India after the period from 01.01.1966 to 25.03.1971, meaning thereby that petitioner was suspected to be a foreigner of post 25.03.1971 stream. No doubt the notice could have been prepared in a better manner but that does not take away from the basic allegation against the petitioner that she was suspected to be a foreigner of post 25.03.1971 stream because that was the meaning of illegal migrant. 12. The order-sheet of the Tribunal presents a distressing picture. The reference under the IMDT Act was received by the IMDT Tribunal, Dhubri on 18.08.1998 whereafter it was registered as IMDT Case No. 225/D/1998. From 18.08.1998 to 25.07.2005 for long 7 years, not a single order was passed by the IMDT Tribunal, Dhubri, not even issuing a notice to the suspected illegal migrant. 13. In the meanwhile, IMDT Act was declared unconstitutional by the Supreme Court in Sarbananda Sonowal v. Union of India reported in (2005) 5 SCC 665 with the further direction that references which were pending before the Tribunals constituted under the IMDT Act should be transferred to the Tribunals constituted under the Foreigners Act, 1946 read with the Foreigners (Tribunals) Order, 1964. Thereafter, the related reference was transferred from the IMDT Tribunal, Dhubri to the Foreigners Tribunal (2nd), Dhubri on 25.07.2005 but again it is most distressing to note that from 25.07.2005 till 16.08.2015 for long 10 years not a single order was passed by the Foreigners Tribunal (2nd), Dhubri, not even issuing a notice to the petitioner. In other words, from 1998 to 2015 i.e., for long 17 years there was complete standstill, firstly, before the IMDT Tribunal, Dhubri and thereafter before the Foreigners Tribunal (2nd), Dhubri. This speaks volumes about the way these two Tribunals functioned. It indeed reflected a very sorry state of affairs. 14. It was only after creation of additional Tribunals in the year 2015 following the Supreme Court order in Assam Sanmilita Mahasangha v. Union of India reported in (2015) 3 SCC 1 , that the pending references including the related reference gathered momentum. On 17.09.2015, the reference was received by the Foreigners Tribunal (8th), Dhubri where it was renumbered as FT Case No. 8/130/GKJ/2015 and notice was issued to the petitioner. 15. In her written statement filed on 30.10.2015, petitioner mentioned that she was the daughter of Jahirul Hoque @ Jahirul Sk and Halima Bibi. Prior to marriage, she was resident of village Madhusoulmari Part-II in the district of Dhubri. Father's name was included in the National Register of Citizens (NRC), 1951 and in the voters lists of 1966 and 1970. After marriage with Ansar Ali, petitioner started residing at village Batuatali of the same district. Her name appeared in the voters list of 1989. 16. This was all that the petitioner stated in her written statement which by any account was wholly inadequate to establish her identity as a citizen of India having regard to the mandate of section 9 of the Foreigners Act, 1946 as explained by the Supreme Court in paragraph 26 of Sarbananda Sonowal (supra). 17. From whatever was stated in the written statement what is discernible is that according to the petitioner her father Jahirul Hoque @ Jahirul Sk was a citizen of India and she being his daughter was therefore a citizen of India. Let us now examine as to whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. 18. In her evidence-in-chief filed by way of affidavit, petitioner narrated more or less the same thing as stated in her written statement. Let us now examine as to whether petitioner could prove the above facts in issue by adducing cogent, reliable and admissible evidence. 18. In her evidence-in-chief filed by way of affidavit, petitioner narrated more or less the same thing as stated in her written statement. Certain questions were put by the Tribunal to the petitioner on 20.12.2015. It was only in response to the questions that for the first time petitioner disclosed her age as 45 years. If the petitioner was 45 years of age in 2015, it would mean that she was born sometime in the year 1970. She also stated that her father and mother had expired. 19. Petitioner filed five documents which were marked as Exts. 1 to 5. Though these documents are marked as exhibits, it is quite apparent that neither the documents nor the contents thereof were proved as per requirement of law. Even then, we have looked into the documents. 20. Ext. 1 is a certificate dated 10.08.2005 of the Secretary of the Madhusoulmari Gaon Panchayat certifying that Jamiron Bibi was the daughter of Johirul Sheikh (initially the name was written as Jahirul Hoque but Hoque was struck off and was replaced by Sheikh). It was mentioned therein that father Jahirul Sk was a voter in 1966. 21. Record does not disclose that Secretary of Madhusoulmari Gaon Panchayat had testified before the Tribunal alongwith the contemporaneous record to prove Ext. 1 as well as the contents thereof. That apart, we have already noticed that the reference was made against the petitioner way back in the year 1998. This certificate suddenly issued after 17 years would certainly raise questions of credibility which only the author of the certificate could have explained or dispelled. In the absence of such testimony, no credence can be given to such a certificate. 22. In Rupjan Begum v. Union of India reported in (2018) 1 SCC 579 , Supreme Court has clarified that certificate issued by the Gaon Panchayat Secretary by itself is no proof of citizenship. It is only a linkage document of a married woman linking her with her parents. But in this document, there is no mention about marriage of the petitioner and therefore it is not a linkage document. It is only a linkage document of a married woman linking her with her parents. But in this document, there is no mention about marriage of the petitioner and therefore it is not a linkage document. But more importantly, Supreme Court has cautioned that such a certificate has to be subjected to two stages of verification-authenticity of the document itself as well as authenticity of the contents. There is nothing on record to show that this exhibit was subjected to any verification by any authority. Therefore, Ext-1 is of no legal consequence. 23. Ext. 2 is a photocopy of voters list extract of 1966 where the two voters were Jahirul Sk, son of Saritullah, aged 32 years; and Halima Khatun Bibi, wife of Jahirul, aged 23 years. They were residents of Madhusoulmari Part-2 village (Gauripur Constituency). This exhibit was not compared even with the certified copy of the voter lists extract, not to speak of the primary evidence i.e. the electoral roll in original. Therefore, such a document has hardly any probative value. 24. Ext. 3 is a photocopy of voters list extract of 1970 in respect of Gauripur Constituency where the sole voter was Jahirul Hoque, son of Saritullah, aged 34 years. Here, Halima Khatun Bibi, who was shown as the wife of Jahirul in Ext. 2 is conspicuous by her absence. What happened to her? Why her name did not appear in Ext.-3? Whether Jahirul Sk of Ext. 2 and Jahirul Hoque of Ext. 3 was one and the same person? These are legitimate questions but unfortunately remained unanswered. 25. Ext.4 is a photocopy of Special Family Identity Card in the name of Halima Bewa, which does not carry any date or description of the authority who had issued the said card. That apart, it is trite that Special Family Identity Card or ration card cannot be the basis of proving citizenship. By their very nature, such cards cannot be construed as proof of citizenship. That apart, if Halima Bewa is considered to be the same person as Halima Khatun Bibi of Ext. 2, it would mean that she had obtained this Special Family Identity Card after the death of her husband Jahirul Hoque. Question is when did Jahirul Hoque die? What had happened to Halima Bibi or Halima Khatun Bibi or Halima Bewa all this while? 2, it would mean that she had obtained this Special Family Identity Card after the death of her husband Jahirul Hoque. Question is when did Jahirul Hoque die? What had happened to Halima Bibi or Halima Khatun Bibi or Halima Bewa all this while? Why her name did not figure in any voters list after 1966? There are no explanations to these most vital questions. 26. The last document is marked as Ext-5 which is a photocopy of voters list extract of Gauripur Constituency of the year 1989. Here the voter at Sl. No. 536 is Jamiron Bibi, wife of Ansar Ali, aged 20 years. This document does not indicate any linkage of Jamiron Bibi with either Jahirul Sk. or Jahirul Hoque and therefore can be no assistance to the petitioner. Besides, as per this document, petitioner was born in 1969 (1989-20=1969) which is contradictory to her years of birth as noticed above. 27. Sum total of the above discussion is that petitioner had failed to prove by adducing any admissible evidence that she was the daughter of Jahirul Sk or Jahirul Hoque whom she claimed to be her father and a citizen of India. Thus, petitioner failed to establish any linkage with an Indian parent relatable to a period prior to 25.03.1971 which is the cutoff date for identification of foreigners in the State of Assam as per section 6 A of the Citizenship Act, 1955, as amended. 28. Resultantly, we are of the view that petitioner had failed to discharge her burden under section 9 of the Foreigners Act, 1946 to prove that she was not a foreigner but a citizen of India. 29. In such circumstances, we do not find any merit in the writ petition statement to warrant interference with the order passed by the Tribunal. Consequently, writ petition is dismissed. Interim order passed earlier stands vacated. 30. Registry to send down the LCR forthwith and inform the concerned Foreigners' Tribunal, Deputy Commissioner and Superintendent of Police (B) for taking necessary follow up steps. 31. Copies of this order may also be furnished to learned Standing Counsel, Election Commission of India and State Coordinator, NRC, Assam.